Mistake of Legal Element, the Common Law, and Article 32 of the Rome Statute: A Critical Analysis

Posted: 8 Aug 2008

See all articles by Kevin Jon Heller

Kevin Jon Heller

University of Copenhagen (Centre for Military Studies); Australian National University

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Date Written: July 2008


Article 32(2) of the Rome Statute provides that ‘[a] mistake of law may … be a ground for excluding criminal responsibility if it negates the mental element required by such a crime’. Although this provision has been described as ‘cryptic’, I argue in this essay that it was specifically drafted to recognize what common-law scholars have variously called ‘mistake of mixed fact and law’, ‘mistake of legal fact’, and — most usefully — ‘mistake of legal element’: namely, a mistake regarding the definition of a legal element in a crime. A perpetrator who commits a mistake of legal element (MLE) cannot be said to have acted ‘knowingly’ with regard to that element, and is thus entitled to an acquittal if the element requires knowledge. Although most scholars accept the idea that at least some MLEs are exculpatory under Article 32, they uniformly insist that very few MLE defences will be successful. I disagree, for three reasons. First, nearly every crime in the Rome Statute contains at least one legal element. Second, the methods that the drafters of the Elements of Crimes used to limit MLEs — providing that legal elements only require knowledge of the underlying facts and replacing Article 30's default knowledge requirement with a simple negligence standard — are almost certainly inconsistent with the Rome Statute. Third, all of the mechanisms that scholars have proposed to limit MLEs — such as subjecting them to German criminal law's ‘layman's parallel evaluation’ test — are inconsistent with Article 32's common-law foundations. Properly understood, therefore, Article 32 potentially recognizes a wide variety of exculpatory MLEs. That is a disturbing prospect, because there is no reason why soldiers should not be expected to have at least a reasonable understanding of international humanitarian law. I thus conclude the essay by arguing that MLEs should be eliminated by specifically amending the Rome Statute to apply a negligence standard to legal elements.

Suggested Citation

Heller, Kevin Jon, Mistake of Legal Element, the Common Law, and Article 32 of the Rome Statute: A Critical Analysis (July 2008). Journal of International Criminal Justice, Vol. 6, Issue 3, pp. 419-445, 2008, Available at SSRN: https://ssrn.com/abstract=1212083 or http://dx.doi.org/mqn032

Kevin Jon Heller (Contact Author)

University of Copenhagen (Centre for Military Studies) ( email )


Australian National University ( email )

Canberra, Australian Capital Territory 2601

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